Citation Nr: 1236347
Decision Date: 10/19/12 Archive Date: 11/05/12
DOCKET NO. 11-02 806 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death.
2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318.
3. Entitlement to accrued benefits based on a pending claim for a total disability rating based upon individual unemployability (TDIU) for a time period prior to December 26, 2000.
REPRESENTATION
Appellant represented by: Minnesota Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran had active service from July 1948 to June 1950, and from October 1950 to October 1951. He died in June 2010. The appellant is the Veteran's surviving spouse.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the RO denied claims of entitlement to service connection for the cause of the Veteran's death, and entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318. The issue of entitlement to accrued benefits was adjudicated by the RO in a January 2011 Statement of the Case (SOC) as an inextricably intertwined sub-issue of the claim for DIC benefits under 38 U.S.C.A. § 1318.
The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran died more than 5 years following his separation from his last period of active service, and was not receiving or entitled to receive compensation at the 100 percent rate for the 10-year period immediately preceding his death.
2. An unappealed March 2001 RO rating decision awarded a combined 100 percent service-connected rating effective December 26, 2000, the date of a formal application for TDIU benefits.
3. The March 2001 RO rating decision implicitly denied any claim for TDIU benefits pending prior to December 26, 2000.
CONCLUSIONS OF LAW
1. The criteria for an award of DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2002); 38 C.F.R. § 3.22 (2011).
2. The criteria for an award of accrued benefits based on a pending TDIU claim for a time period prior to December 26, 2000 have not been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.1000 (2011)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant seeks entitlement to DIC benefits under 38 U.S.C.A. § 1318. She emphasizes that, at the time of his death, the Veteran had been in receipt of a 100 percent service-connected rating for 9 years, 5 months and 3 days. She has cited to evidence of record which she contends establishes that the Veteran's service-connected disabilities rendered him unemployable for a time period much earlier than 10 years prior to his death. She argues that, had VA recognized a reasonably raised claim for TDIU benefits, she would meet the criteria for DIC benefits under 38 U.S.C.A. § 1318.
In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran's death was not service-connected, provided that the veteran was in receipt of or "entitled to receive" compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least five years from the date of his discharge or release from active duty, or for 10 or more years immediately preceding his or her death.
The appellant filed her claim for DIC benefits in 2010. This was after VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, in January 2000 to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such a right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. 65 Fed. Reg. 3,388 (Jan. 21, 2000).
The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility, which was a Court-created concept subject to extensive litigation. See Green v. Brown, 10 Vet. App. 111 (1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v. West, 11 Vet. App. 307 (1998).
The Board notes that the phrase "entitled to receive" also contemplates a situation in which additional service department records, existing at the time of a prior VA decision but not previously considered by VA, provide a basis for reopening a claim finally decided during the veteran's lifetime and awarding a total service-connected disability rating retroactively. See 38 C.F.R. § 3.22(b)(2); National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 476 F.3d 872 (Fed. Cir. 2007) (NOVA III).
In this case, there is no argument that the exception in 38 C.F.R. § 3.22(b)(2) applies in this case. Additionally, while the Veteran claimed during his lifetime that service treatment records (STRs) had been missing, the Board does not find that the record contains the receipt of any additional service department records at any point which could impact the effective date of award for 100 percent service-connected benefits effective December 26, 2000.
Benefits to which a beneficiary was entitled at his death, based on evidence on file at the date of death or under existing ratings or decisions, i.e., accrued benefits, will be paid to survivors as provided by law. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a).
Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his/her death or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). Further, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5).
The term "application," while not defined in the statute, is broadly construed by regulation to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. § 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998).
The VA adjudication system is a non-adversarial, pro-claimant system wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF. v. Derwinski, 1 Vet. App. 324 (1991). Nonetheless, a claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). There must be some intent expressed to apply for benefits, and the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek service connected benefits. MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006); Brannon, 12 Vet. App. at 35.
The United States Court of Appeals for the Federal Circuit has held that an RO may implicitly deny a pending claim even when the decision fails to explicitly address the contention in a final rating decision. Andrews v. Nicholson, 421 F.3d. 1278, 1283 (Fed. Cir. 2005). The implicit denial rule has been described as a notice provision. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The Court has cited four factors for considering whether a claim has been implicitly denied: (1) the specificity of the claims or relatedness of the claims, i.e., is the claimant seeking benefits "for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related"; (2) "the specificity of the adjudication, i.e., does the adjudication allude to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) the "timing of the claims"; and (4) "whether the claimant is represented." Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010).
Historically, the Veteran had active service from July 1948 to June 1950, and from October 1950 to October 1951. He was awarded the Combat Infantryman Badge (CIB) for combat service in Korea during his second period of active service. His STRs may be incomplete as a result of destruction during a 1979 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. During his lifetime, the Veteran repeatedly referred to field hospital treatment following a combat-related injury to his lower back and right shoulder.
The Veteran had a long-standing history of seeking VA benefits for multiple disabilities. Historically, the RO granted service connection for malaria and residuals of appendectomy in an August 1952 rating decision. A final Board decision in June 1986 denied service connection claims for a back disorder, arthritis, rheumatoid arthritis, psoriasis and bilateral hearing loss.
A February 1996 RO rating decision granted service connection for bilateral pes planus. By means of a rating decision dated October 1998, the RO granted service connection for psoriasis and psoriatic arthritis. RO rating decisions in February 1999 RO awarded service connection for tinnitus, bilateral hearing loss and degenerative arthritis of the lumbar spine. A final Board decision in August 1999 denied a claim for an increased (compensable) rating for service-connected malaria. A July 1999 RO rating decision granted service connection for psoriatic arthritis involving both hips.
In March 2000, the RO granted entitlement to service connection for otitis externa. In June 2000, the RO granted service connection for PTSD. Finally, in March 2001, the RO granted service connection for headaches.
As a result of these multiple ratings, the March 2001 RO rating decision reflects that a combined 70 percent rating for service-connected disability had been in effect from November 21, 1991 to June 12, 1995, that a combined 90 percent rating for service-connected disability had been in effect from June 13, 1995 to December 25, 1990, and that a combined 100 percent rating for service-connected disability had been in effect since December 26, 2000. The Veteran died on June, [redacted]2010, which falls short of meeting the requirement of 38 U.S.C.A. § 1318 of having a 100 percent rating due to service-connected disability for a period of 10 or more years immediately preceding death.
The appellant primarily argues that the evidence of record included evidence that the Veteran's service-connected disabilities had rendered him unemployable prior to December 26, 2000, and that a reasonably raised claim of entitlement to TDIU had been pending for many years prior to his award of a 100 percent disability rating.
A claim for TDIU benefits is reasonably raised as an informal claim under 38 C.F.R. § 3.155(a) when a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See Comer v. Peake, 552 F.3d 1362, 1367 (Fed.Cir.2009) (TDIU "is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"). The TDIU benefit is a component of an increased rating claim, and is not deemed a separate "claim" which must be formally raised. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).
The record reflects that, in the early 1980s, the Veteran was deemed unemployable by multiple physicians due primarily to his chronic low back disability and/or rheumatoid arthritis. See. e.g., Medical reports dated September 1982 (disabled secondary to pain); February 1983 (unable to work due to chronic low back pain); June 1983 (back pain sufficient to preclude a gainful occupation for a possible permanent indefinite period of time); August 1983 (chronic low back pain with degenerative joint disease of the spine sufficient to preclude a gainful occupation for an indefinite period of time); April 1984 (indefinitely unable to work due to severe rheumatoid arthritis); and September 1984 (permanently unemployable due to rheumatoid arthritis and chronic lumbar spine injury).
As indicated above, the RO first awarded service connection for psoriatic arthritis, effective November 21, 1991, in an October 1998 rating decision. An initial 20 percent evaluation was assigned. By letter dated October 30, 1998, the RO informed the Veteran of the October 1998 decision, and provided him notice of his appellate rights.
In a February 1999 rating decision, the RO first awarded service connection for degenerative arthritis of the lumbar spine, and assigned an initial 40 percent rating effective July 3, 1991. By letter dated February 25, 1999, the RO informed the Veteran of the February 1999 rating decision, and provided him a copy of the rating decision and his appellate rights.
At a December 1999 VA joints examination, the Veteran described low back and arthritis pain which prevented him from even doing household chores.
Arguably, in the context of all of this evidence, the Veteran reasonably raised a claim for entitlement to TDIU benefits which required RO adjudication. On December 26, 2000, the Veteran filed a formal claim for TDIU benefits which included the submission of a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).
In March 2001, the RO issued a rating decision which awarded a combined 100 percent service-connected rating effective December 26, 2000, the date of the formal application for TDIU benefits. In so doing, the RO provided the following analysis concerning the TDIU claim:
The [V]eteran will be considered permanently disabled at the 100 percent level. Since he is 100 percent by schedule, no action is needed on his claim for total compensation benefits based on individual unemployability.
By letter dated March 28, 2001, the RO informed the Veteran of the March 2001 rating decision, provided him a copy of the rating decision, and informed him of his appellate rights. The record does not reflect that the Veteran filed any written document disagreeing with the RO's March 2001 determination, or that any new and material evidence had been received, within one year from receiving notice of decision. That decision, therefore, is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.
Here, the record reflects that a TDIU claim may have been reasonably raised at the time service connection was awarded for psoriatic arthritis in October 1998 and or when degenerative arthritis of the lumbar spine was service-connected in February 1999. However, this pending claim was finally adjudicated by the March 2001 RO rating decision which awarded a 100 percent schedular rating for service-connected disability, thus mooting the TDIU benefit. See Williams v. Peake, 521 F.3d 1348, 1350 (Fed. Cir. 2008) (holding that a finally adjudicated claim on a subsequent identical claim serves as a final adjudication of an earlier pending identical claim). See also Herlehey v. Principi, 15 Vet. App. 33 (2001) (dismissing a TDIU claim when a 100 percent schedular rating had been in effect for the entire appeal period, as no additional benefit to the claimant would accrue with a TDIU award). See also Locklear v. Shinseki, 24 Vet. App. 311, 314 Footnote 2 (2011).
Given this procedural history, the Board has no jurisdiction to adjudicate the merits of the appellant's assertions as the March 2001 rating decision, which awarded an effective date of December 26, 2000 for the award of a 100 percent schedular rating for service-connected disability, is final and cannot be challenged absent a motion to revise the decision based on clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Notably, the appellant has not challenged the RO's March 2001 decision on the effective date of award on a CUE basis. She is free, however, to raise such a claim in the future.
Thus, the Board finds as a matter of law that the effective date of award assigned for entitlement to 100 percent service connected benefits, December 26, 2000, cannot be revised absent a CUE challenge which has not been made in this case. Rudd, 20 Vet. App. at 300.
The Board next notes that, during his lifetime, the Veteran submitted numerous service connection claims to the RO which resulted in a protracted litigation history. The Board must also look at the possibility that, prior to the award of a 100 percent schedular rating effective December 26, 2000, the Veteran may have raised a service connection claim that remained pending - thus, potentially allowing an additional ratable service-connected disability which could allow a 100 percent combined rating prior to December 26, 2000.
In January 1983, the Veteran referenced injuring his right shoulder during a combat action. This injury occurred at the same time that he claimed to have injured his low back. A February 1983 RO rating decision specifically denied a claim of entitlement to service connection for right shoulder disability. By letter dated March 2, 1983, the RO notified the Veteran of the February 1983 rating decision and his appellate rights.
Thereafter, the Veteran continued to report a right shoulder injury during combat service. See generally VA examination dated May 1984; Private medical record dated June 5, 1984. His medical records also reflected a diagnosis of rheumatoid arthritis. See Private medical record dated April 19, 1984. The Veteran had formally raised a claim of service connection for low back pain with arthritis. See Representative memorandum dated April 10, 1984.
A September 1984 RO rating decision specifically denied claims of entitlement to service connection for arthritis and low back syndrome. The Veteran was notified of this rating decision, and his appellate rights, by letter dated September 4, 1984. After receiving new and material evidence, the RO readjudicated this claim in another September 1984 rating decision. By letter dated September 24, 1984, the Veteran was notified of this rating decision and his appellate rights.
In December 1984, the Veteran re-raised the issue of entitlement to service connection for degenerative arthritis, rheumatoid arthritis and back disability citing his combat injuries causing hearing and "other problems which are on record."
On VA examination in March 1985, the Veteran alleged injuring his lower back and right shoulder in service in the same sentence he listed disabilities of degenerative arthritis.
In a rating decision dated May 1985, the RO found that new and material evidence had not been submitted to reopen claims of "low back syndrome, rheumatoid arthritis and degenerative arthritis with pain in the right shoulder and cervical spine." The Veteran appealed this decision to the Board.
By decision dated June 1986, the Board denied service connection claims for a back disorder, arthritis, rheumatoid arthritis, psoriasis and bilateral hearing loss.
In December 1986, the Veteran submitted an 8-page written statement summarizing his many disability claims, his treatment history and dissatisfaction with VA rating decisions. He reiterated that his STRs were incomplete. In so doing, the Veteran included the following statement:
THE VETERAN HAS TRIED EVERY AVENUE TO SECURE THESE RECORDS OF HIS INJURYS IN KOREA IN AUGUST OF 1951. THEY WOULD ALSO INDICATE THAT HE HAD BEEN HIT PREVIOUS TO THIS INJURY, WITH GRENADE SH[R]APNEL IN HIS RIGHT ARM. HE WAS ALSO TREATED FOR FROST BITE TO THE TOES ON HIS LEFT FOOT ON HIS BIRTHDAY, JANUARY 12, 1951.
Thereafter, the Veteran went on to state that he experienced chronic back problems, and that his present condition was directly related to his injuries in August of 1951. He then stated as follows:
THE VETERAN WOULD ASK THAT THE MEDICAL STATEMENTS PRESENTED AND THE SWORN AFFIDAVITS FROM THE WITNESSES PRESENT AT THE TIME OF INJURY AND HOSPITALIZATION IN KOREA, BE NOW TAKEN AND USED AS EVIDENCE TO SUPPORT THE CONCLUSION THAT THE VETERAN WAS INDEED, INJURY IN KOREA, AS THE AFFIDAVITS SO STATE. THAT THERE-FORE HE SHOULD BE ENTITLED TO SERVICE CONNECTION FOR HIS INJURYS AND THE AGGRAVATION, AS THEY ARE MEDICALLY OUTLINED.
A December 1986 RO rating decision denied service connection claims for back disability and rheumatoid/degenerative arthritis. By letter dated December 24, 1986, the Veteran was notified of the December 1986 rating decision and his appellate rights.
In August 1990, the Veteran submitted another statement in which he included a paragraph self-described as "somewhat off the subject" about how his service connection back claim "and other related injuries sustained in 1951 in Korea" had fallen through the cracks at VA. He cited to an August 12, 1951 immunization record for shots that he alleged would only be given for open wounds.
In November 1991, the Veteran submitted a May 1990 medical statement from Dr. A.N., which asserted that tetanus toxoid shots provided to the Veteran in October 1950, December 1990 and August 1951 were usually given when an open wound was present, such as the Veteran's claim of shrapnel injury to his right arm above the elbow. The Veteran also submitted an April 1991 letter from Dr. B.C.H. who indicated that the documentation of the Veteran receiving tetanus toxoid and typhoid vaccine on August 12, 1951 would have been appropriate treatment for the Veteran's alleged back injury with lacerations.
Also in November 1991, the Veteran submitted a statement from a civilian who had personal knowledge that, when the Veteran returned home from Korea, that the Veteran showed him a scar which he had related to a shrapnel injury.
The Veteran further submitted a written statement received in November 1991, but written on October 18, 1991, wherein he again addressed the absence of STRs which have resulted in denials of his claims. The Veteran pointed to his recent submissions as substantiating his allegations. He specifically stated that "[t]he medical statement dated May 10, 1990 by [Dr. A.N.] addresses an injury which occurred prior to August 12th, however, it fully substantiate[s] the occurrence of injury."
In September 1992, the RO issued a rating decision which specifically denied applications to reopen service connection claims for a back disorder and arthritis. In so doing, the RO specifically referenced the May 10, 1990 statement from Dr. A.N. as evidence reviewed in the determination.
In October 1992, the Veteran submitted a Notice of Disagreement (NOD) with respect to the September 1992 RO decision 'for the claims sought includes for the injuries which were sustained from an explosion in Korea in August 1951 and the related effects as claimed." The Veteran, however, did not specify the exact injuries or related effects claimed. He also did not disagree with the RO's characterization of claims.
After a Statement of the Case (SOC) was furnished in November 1992, the Veteran submitted a substantive appeal to the Board in March 1993. He described inservice injuries as follows:
Between January 1, 1951 and September 19, 1951 the claimant was injured twice in combat, both occurring in the taking of hills. The first, by grenade shrapnel, a flesh wound above the right elbow, which was treated with-in at the unit level. Later, on August 12, 1951 the claimant was taken to a field hospital with injuries sustained and caused by an explosion. This explosion caused him to be pinned down and between an outgrowth, or vertical, chunk or slab, of crag rock, which was loosened, and tipped, leaning against a sheared stump of a tree. The claim[a]nt was behind the rock with his back to the stump, when the force of the explosion caused the rock to tip, forcing the veteran down and between the two, with the top of the rock resting against the stump, leaving a pocket open, under the rock and between the stump. All of which occurred on a steep incline near the top of the hill. Due to the severe and immediate circumstances which were occurring in the completion of taking the hill, the claim[a]nt was not removed from this compressed position until after the top of the hill was secured, the veteran believes that it was several minutes prior to removal. There were compression injuries to the lower back, hips, buttocks and upper legs and to the shoulders, in particular to the right shoulder and neck. The water canteen that was attached behind to the web belt was compressed up and into the lower back.
In being taken to the field hospital several pieces or particules of for[ei]gn matter were removed from the buttocks and upper hind legs which were imbedded under the skin, there was also the tearing off of skin below the left knee cap. The veteran did receive shots. Following the explosion there was, along with the injuries, severe ringing of the ears, disorientation, nausea, and vomiting followed by headaches.
Thereafter, the Veteran reported his postservice treatment for back pain, malaria and psoriasis. He also raised the issue of his missing STRs. He closed with the following statement:
The following is requested of the Board of Appeals.
In consideration that the claimants malaria, along with its residuals, were not terminated, as medically documented by Dr. [S] and by the Veterans Administration Hospital, it is requested by the claimant that he be granted retro-active disability compensation to October 1953.
That the claimant be granted retro-active disability compensation caused by ototox[i]city of the drug chloroquine in 1952 for psoriasis and hearing nerve damage.
That the claimant be granted a full disability from the injuries in Korea and for the medical residuals which occurred from the injuries, which includes for the claim[a]nts, back, arthrit[i]s, degenerative spine disease, cervical strain syndrome with headaches, arthrit[i]s, rheumatoid arthrit[i]s, along with the continued hearing loss and psoriasis.
The Veteran's appeal came before the Board in October 1995 which, in pertinent part, phrased the issue of "[w]hether new and material evidence has been presented to reopen claims for entitlement to service connection for back disability, arthritis, psoriasis and hearing loss and, if so, whether a review of evidence, old and new, warrants a grant of those benefits." The Board remanded these claims for additional development. The Board also referred to the RO a claim of service connection for tinnitus, and noted that the Veteran appeared to be advancing compensation claims for various disabilities under the provisions of 38 U.S.C.A. § 1151.
As reflected above, the RO ultimately granted service connection for back disability, hearing loss, psoriasis, psoriatic arthritis involving multiple joints, and degenerative arthritis of the lumbar spine. This terminated the Board's jurisdiction to those claims. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The RO later granted service connection for tinnitus.
The RO did not develop the Veteran's claims raised under 38 U.S.C.A. § 1151 as they were rendered moot by the awards of service connection for hearing loss, psoriasis and psoriatic arthritis, which the Veteran had claimed stemmed resulted in VA prescribed chloroquine.
As reflected above, the Veteran mentioned in several statements to have incurred shrapnel injury to the right arm and, on one occasion, he mentioned a frostbite injury during service. He primarily mentioned these injuries in the context of arguing that his STRs were incomplete, and that his claim of back injury should not be rejected on the basis of no record of injury. His intent on mentioning these claims, however, is unclear.
In the December 1986 statement, the Veteran concluded by asking that his medical statements and sworn affidavits regarding his injury and hospitalization in Korea should be accepted as substantiating his claims. This injury referred to the claimed back and right shoulder injury.
In the March 1993 statement, the Veteran made a clear statement regarding the "medical residuals" being claimed which included his "back," "arthrit[i]s," "degenerative spine disease," "cervical strain syndrome with headaches," "rheumatoid arthrit[i]s," "hearing loss" and "psoriasis." He did not express an intent to seek VA compensation for a claimed frostbite injury or shrapnel wound injury to the right arm.
The Board also notes that the Veteran never voiced any complaint regarding the phrasing of issues by the RO in September 1992, or the Board in October 1995. He never directly filed formal service connection claims for either frostbite injury or shrapnel wound injury to the right arm prior to the December 26, 2000 effective date of award for service-connected benefits.
Upon review of the totality of the record, the Board finds that, prior to December 26, 2000, the Veteran did not have pending service connection claims for residuals of frostbite or residuals of shrapnel wound to the right arm. First, the Veteran did not specifically reflect an intent to seek service connection for these disabilities. Rather, he referred to these two issues in the context of attempting to establish his STRs were incomplete. He further did not identify the benefits being sought other than benefits for his "back," "arthrit[i]s," "degenerative spine disease," "cervical strain syndrome with headaches," "rheumatoid arthrit[i]s," "hearing loss" and "psoriasis" as specifically stated to the Board in 1995.
The Board further observes that, had the Veteran intended to seek service-connected benefits for residuals of frostbite or residuals of shrapnel wound to the right arm, then he was placed on notice that these claims had been implicitly denied in the September 1992 RO rating decision. This rating decision was triggered by his November 1991 submissions which vaguely referenced his allegation of frostbite and shrapnel injuries. This adjudication, while not mentioning these allegations, specifically cited the May 10, 1990 statement from Dr. A.N. which the Veteran had referenced as treatment for the alleged shrapnel wound injury. Additionally, the Veteran himself identified his residuals as arthritis and low back disability which is essentially the set of residuals identified by the Veteran to the Board in 1995. The Veteran was not represented and, thus, is entitled to a liberalized interpretation of his statements. However, as indicated above, the Veteran's statements do not reflect a clear intent to seek these benefits in the first instance.
Overall, the Board finds that, prior to December 26, 2000, the Veteran did not have pending service connection claims for residuals of frostbite or residuals of shrapnel wound to the right arm. And, assuming he had the intent to file for these benefits, he was reasonably placed on notice that these benefits were implicitly denied in the RO's September 1992 rating decision.
As such, the Board must deny the claims of entitlement to DIC benefits under 38 U.S.C.A. § 1318 as well as entitlement to accrued benefits based upon a pending TDIU claim. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). As such, the claims must be denied.
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
A preadjudicatory RO letter dated August 2010 fully complied with the VCAA timing and content requirements. In this respect, the notice advised the appellant of the types of evidence and information required to substantiate claims for accrued benefits and a DIC claim under 38 U.S.C.A. § 1318, the relative duties on the part of herself and VA in developing these claims, and notice of the criteria for establishing disability ratings and effective dates of award.
The record also does not reflect that any further evidentiary development is necessary. The claims for accrued benefits and DIC benefits under 38 U.S.C.A. § 1318 are denied as a matter of law. As such, no further notice or assistance would be required to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).
ORDER
The claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied.
The claim of entitlement to accrued benefits based on a pending claim for TDIU for a time period prior to December 26, 2000 is denied.
REMAND
The appellant seeks to establish her entitlement to service connection for the cause of the Veteran's death. She has raised multiple theories of entitlement. She has alleged that the cause of the Veteran's death, hemorrhagic stroke with contributing cardiovascular disease, was caused and/or aggravated by service-connected PTSD, including medications used to treat service-connected PTSD. The record contains medical opinions for and against the claim addressing both theories.
The appellant has recently submitted evidence showing that, prior to his death, the Veteran had been diagnosed with cerebral atrophy with severe dementia. She has submitted medical treatise information explaining that advanced Alzheimer's results in significant disruption of brain function which limits an individual's ability to think, act and remember. In argument presented in August 2011, she cites to several studies which suggest that PTSD and/or hearing loss patients have a higher risk than the normal population for developing dementia.
The appellant also notes that the Veteran had a history of multiple falls while undergoing nursing home care, which may have been attributable to his severe dementia. She argues that a head injury in November 2008, which resulted in CT scan findings of a small contusion in the posterosuperior right temple lobe, may have contributed to his death.
Finally, the appellant now argues that all medications taken by the Veteran for service-connected disability, and not just PTSD, may have caused and/or contributed to the cause of death.
The medical treatise articles submitted by the appellant reflect that a reasonable possibility exists that obtaining additional medical opinion may aid in the substantiation of the claim. As such, any additional development is warranted. 38 U.S.C.A. § 5103A(a)(1); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. Assist the appellant in obtaining all relevant medical records pertaining to the Veteran's diagnosis and treatment for dementia, to include complete VA nursing home records.
2. Upon completion of the above, forward the claims folder to an appropriately qualified medical doctor who should be requested to address the following questions:
a) whether it is at least as likely as not that the Veteran's service-connected PTSD and/or bilateral hearing loss disability caused his later development of dementia;
b) whether it is at least as likely as not that the Veteran's service-connected PTSD and/or bilateral hearing loss disability aggravated beyond the normal progress of the disorder his later development of dementia;
c) if and only if the Veteran's dementia is deemed to have been caused or aggravated by service-connected PTSD and/or bilateral hearing loss disability, whether it is at least as likely as not that the Veteran's dementia caused or contributed substantially or materially to cause death, to include a head injury in November 2008; and
d) whether it is at least as likely as not that medications used to treat service-connected disability during his lifetime caused or contributed substantially or materially to cause death, to include gabapentin, trazodone, methocarbomal, naproxen, meclicine, aspirin, hydrocortisone cream, triamcinolone acetonide cream and fluocinolone acetonide?
In providing these opinions, the examiner(s) is referred to the appellant's written statements submitted in August 2011 and May 2012 with regard to her theories of causation and reference to supporting medical treatise articles.
3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and an appropriate period of time to respond.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs